Tribes and Same-Sex Marriage in Columbia Human Rights Law Review

My article on tribal laws relating to same-sex marriage has just been published in Columbia Human Rights Law Review. It delves into the twelve tribal laws that allow same-sex marriage and also looks at tribal DOMAs, tribal domestic partnership laws, and other tribal laws that bear on same-sex marriage. Finally, it addresses the somewhat limited effects Windsor and the future Supreme Court decision in Obergefell are likely to have on tribal DOMAs.

Thanks to everyone who provided information on tribal laws. I couldn’t have done it without you!

New Scholarship by Seth Davis: “Tribal Rights of Action”

Seth Davis has posted “Tribal Rights of Action,” published in the Columbia Human Rights Law Review. Here is the abstract:

What power do the federal courts have to supply tribal rights of action when Congress has been silent? This Article answers that question by linking two seemingly disparate schools of thought: federal Indian law and tort theory. Focusing upon tribal rights of action forces us to correct significant misunderstandings about perennial debates concerning corrective justice, distributive justice, reparations, and the law of remedies.

My thesis is that there is a surprising and significant consonance between federal Indian law’s doctrines of federal obligation towards Tribes and the theory of civil recourse. Reflected in Marbury v. Madison’s famous right-remedy principle, civil recourse holds that in some instances the government has a duty to provide the victim of a wrong an avenue for redress. This Article argues that the federal government has a duty of civil recourse towards Tribes, arising from the treaty system and the contemporary constraints that Congress and the courts have imposed upon the exercise of tribal adjudicative authority. The duty to provide civil recourse distinguishes tribal rights of action from the United States’ own rights to sue in federal court, as well as federal rights of action for states, which can freely vindicate their interests in their own courts without regard to the limits the United States imposes upon the exercise of tribal sovereignty. The special federal duty to provide civil recourse may be fulfilled by Congress, which can expressly create a right of action. When Congress does not do so, the federal courts have a special competence and duty to imply tribal rights of action.

Two New Student Articles on Indian Law from the Columbia Human Rights Law Review

Columbia Human Rights Law Review recently published two student notes on Indian Law topics:

A Perfect Storm: The U.S. Anti-Trafficking Regime’s Failure to Stop the Sex Trafficking of American Indian Women and Girls (also here)

Protecting Native American Communities by Preserving Sovereign Immunity and Determining the Place of Tribal Businesses in the Federal Bankruptcy Code

Lorie Graham on “A Right to Media” for Indigenous Peoples

Lorie Graham has posted “A Right to Media?” on SSRN. The paper is forthcoming from the Columbia Human Rights Law Review. The abstract:

Often we think about media as a tool for transmitting information. However, media also has the power to actually name and define issues. This is particularly true when mainstream media is reporting (or chooses not to report) on events that involve a marginalized or non-majority audience, as in the case of indigenous peoples. Recent scholarship from journalism and psychology explores the role media plays in shaping our view of “self” and “other.” This same scholarship explores how media coverage can shape intergroup relationships, silencing voices or promoting voices in the process of public deliberation. This latter issue might well take us into the realm of “civic or public journalism,” which involves a shift from journalism as information to journalism as a conversation. This paper does not seek to articulate the proper role of journalism in the reporting of news and information. Rather the focus of this article is to place media within the context of international human rights law: Is there a “right to media” under international law? And if so, what does that right entail? From there it may be possible to explore more fully the larger ethical question of the role of media in society.

This article explores each of these questions within the realm of international human rights law and in particular Indigenous Peoples’ rights under the recently adopted U.N. Declaration on the Rights of Indigenous Peoples (UNDRIP). There are two primary reasons for focusing on indigenous peoples. First, as Part II demonstrates the lives of indigenous peoples have been intimately shaped and impacted by mainstream media. Their stories offer up a rich framework for exploring more closely the ethical claims of the role of media in shaping our views of self and other. Second, the UNDRIP is one of the first international human rights instruments to articulate what this paper contends is a right to media. Continue reading

Drug Testing Update — OST Tribal Court Upholds Suspensions re: Drug Testing

I didn’t have to wait long on this question. The second article offers a little detail on the tribal judge’s ruling — of particular note was the ruling that the tribal treasurer could not be suspended because without her presence, tribal employees could not be paid. Suspending her would have created a “crisis.”

Here’s the first article:

Judge upholds suspension of some tribal council members for refusing drug test

Associated Press – November 10, 2007 5:25 PM ET

RAPID CITY, S.D. (AP) – An Oglala Sioux tribal judge has upheld the suspensions of some tribal council members who reportedly refused to take a drug test.

It was not clear how many council members were suspended. Judge Lisa Adams listed six and possibly a seventh, but council members put the number at four or five.

After a daylong hearing, Adams said she thinks the tribal council can require drug tests of its members.

She did, however, reverse the suspension of tribal treasurer Crystal Eagle Elk. She says the tribe could not pay employees or provide vital assistance if the treasurer were suspended.

Supporters of the resolution say it was a response to federal charges in New Mexico against council member Don Garnier, who has been suspended pending the outcome of the case against him.

Adams says she expects her ruling will be appealed.

Copyright 2007 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Here’s the second article:

Oglala Tribal Council suspends members refusing drug test

Judge Lisa Adams upholds council suspensions

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The Oglala Sioux Tribal Council has suspended some members for refusing to take a drug test, and a tribal judge in Pine Ridge upheld the suspensions in a ruling Friday afternoon.

In the same ruling, Chief Judge Lisa Adams reversed the suspension of the tribe’s treasurer, Crystal Eagle Elk, saying the council did not have authority to suspend her.

“My ruling was really simple,” Adams said late Friday afternoon, after a court hearing that lasted all day. It was not clear Friday how many council members had been suspended for refusing the test. Adams’ list had six members, and possibly a seventh, but council members put the number at four or five.

It was clear, however, that Eagle Elk was not suspended. The judge said suspending her would have resulted in a “crisis” because the tribe would have been unable to pay employees or provide vital assistance.

Adams also struck down two parts of a resolution to suspend council members who refused the drug test. One of those provisions would have required publication of the results of the drug tests in newspapers. The other would have required members who failed tests to resign or be impeached.

“The problem is, the council abrogated its own rights,” Adams said.

Drug-test results should be private, Adams said, in part because they could expose council members to criminal prosecution.

Tribal Councilman Floyd Brings Plenty of Oglala, in the White Clay District of Pine Ridge Indian Reservation, introduced the original resolution Oct. 18.

It passed 10 to 3, Adams said, with five council members absent.

Brings Plenty said the measure was a response to federal charges in New Mexico against Councilman Don Garnier.

Garnier was a passenger in a car with 21 pounds of marijuana in the trunk, which authorities discovered during a routine traffic stop. Garnier was suspended pending the outcome of that case.

Brings Plenty said his resolution would demonstrate the council’s commitment to a drug-free reservation.

The measure requires council members and other elected tribal officials to take hair-follicle drug tests. Adams said an attorney for the tribe argued Friday that hair-follicle tests were more accurate than urine tests and could reveal drug use weeks or months before the test.

Brings Plenty said Oglala Sioux Tribe President John Steele ignored the council’s original resolution.

Steele was traveling this week, so Vice President William “Shorty” Brewer signed the order suspending the tribal members and the treasurer.

Tribal Councilman Tom Poor Bear, who was suspended, said he will fight the measure. “That violates our constitutional rights,” he said. “I was elected by the people of the Eagle Nest District.” Poor Bear said drug tests should be reserved for paramedics, law officers and others in similar positions.

Adams said six or seven council members had been suspended, but Kathy Janis of the Wounded Knee District, who was on Adams’ original list, said she not only took the drug test, she voted in favor of it. “If we want our employees to be drug free and take a hair-follicle test, why should we be exempt?” she said. Her name was on the original list in error, she said.

Garfield Little Dog Steele of the Wounded Knee District acknowledged he was suspended. He said his hair was too short for the test last month, but he did take a test this week and expected results Tuesday.

“I’m in favor of this,” Garfield Steele said. He voted for the drug tests, he said, and he said most people on the Pine Ridge reservation supported a drug-free council that “policed themselves.”

Garfield Steele and Janis said Austin Watkins of the Medicine Root District also would be removed from the list.

Other council members on Adams’ list were:

-Jim Meeks of the Eagle Nest District

-Kim Clausen of the LaCreek District

-Cora Whiting of the Medicine Root District

Janis said those three council members remained suspended, but the Rapid City Journal was unable to contact them Friday.

Adams said she believed the tribal council did have the authority to require drug tests of members. “The goal is to promote a drug-free council,” she said. “And if you test positive, you probably should step down.”

Adams expected her ruling to be appealed to the tribe’s three-member supreme court.

Drug Testing in Indian Country

As a former in-house attorney for four different tribes, I’ve seen several proposals to require tribal employees to be subject to random drug testing. I’ve always been against the idea because, in my experience, it creates an adversarial employment relationship. I even wrote one of my first articles about this question, “The Drug War Against Tribal Government Employees: Adopting the Ways of the Conqueror,” published in the Columbia Human Rights Law Review.

Part of my objection to drug testing tribal government employees is that there is no justification for testing employees — unless the government finds a serious problem of substance abuse amongst employees. And in the tribal governments I worked with, I saw nothing of the sort. If anything, the people working for tribal government were the cleanest, soberest, hardest-working people in the community. They would have to be or else they’d be replaced by someone better. My sensitivity favoring tribal employees is heightened by the fact that many tribal people not employed by the government tend to criticize (often unreasonably) tribal employees. Tribal council people know this — and to curry favor with their constituents, all too often join in the chorus. Drug testing proposals are often nothing more than political scheming. Politics does not justify intrusion into employee privacy.

Another part of my objection, not really stated in my article, is that the tribal government leaders that pushed so hard for drug testing never voted to apply it to themselves. This isn’t always the case, but it sometimes is.

I’ve not absolutist about this — if there is an established problem with employee substance abuse, then I see a justification for drug testing. I don’t like it, but since so many tribal communities are afflicted with substance abuse, if it is apparent that tribal employees are as well, then I see the argument. But like I said above, I doubt this is ever the situation.

To be fair to tribes that do drug test, there is a possibility that federal funds come with the requirement that employees be drug tested, but I think there’s a strong argument (and some authority) that those provisions are not meant to be applied to tribal governments. Moreover, I’m not aware of the government shutting down a federally-funded tribal government service because there was no drug testing of tribal employees. [Let me know if there has been.] That would be the equivalent, in my view, of the US eliminating the trust responsibility over drug testing, an outcome I doubt any federal court would agree with.

So I’m confounded a little by the news item (H/T Indianz) that the Oglala Sioux tribal council is bickering over drug testing for tribal council members. Like many tribes, OST already (apparently) subjects its employees to drug testing. And now that one of the council members has been indicted on a federal drug charge, the council is finally going to drug test its own. Several (as many as six) council members refuse to take the test.

I’ve been waiting since I wrote my article and before for a thoroughly reasoned tribal court decision tackling this subject. Maybe this could be it….